Volume 62 Number 78 
      Produced: Wed, 13 Apr 16 11:57:33 -0400

Subjects Discussed In This Issue:

Can a woman become a man and get an aliyah? 
    [Harlan Braude]
Halachically married without civil marriage (2)
    [Martin Stern  Susan Buxfield]
Marital Rape 
    [Dr Russell Jay Hendel]
Single Parenthood 
    [Leah S. R. Gordon]
Under age Marriage 
    [David Tzohar]


From: Harlan Braude <hbraude@...>
Date: Tue, Apr 12,2016 at 12:01 PM
Subject: Can a woman become a man and get an aliyah?

Chana Luntz wrote (MJ 62#77):

> To take somebody who has been socialised within the intense "best friends"
> giggly, emotionally charged (often boy obsessed, but even when not boy
> obsessed, individual relationship obsessed), highly verbal girls school
> environment and throw them into the pack like, hang around with your mates
> and make friends on the football field or, alternatively, in the beis
> hamedrish (those being the two hang-out places at my son's school) is just
> horrific.

I think we're now getting very close to the root of the debate or at least a
principal that I've been trying to hone in on.

Let me start off by saying that I completely accept and even agree with 
Chana's description and characterization of the traumatic emotional and social 
effects a child in such a situation would face and the (un)imaginable pain and 
suffering that would go along with those experiences. I would certainly want to
spare anyone that fate.

My question, however, is whether legal (halachic) judgments are to be made based
primarily on technical legal (halachic) sources, arguments and evidence or
should other factors, like sincere emotional, compassionate and sympathetic
concerns be the principal guide in crafting a ruling?

A strong, perhaps overwhelmingly persuasive argument can certainly be made that
turning a blind eye to the latter would be callous, cruel and possibly a
perversion of justice. After all, at the very least "dercheha darchei noam" and
so forth.

Yet, I think that sometimes the best-intentioned attempts to be compassionate
can lead us astray. Are we not substituting our personal standards of right 
and wrong, compassion and cruelty or awareness and blindness for those of the 
(oral) Torah? By adhering to well-defined, prescribed methods and definitions
provided by Chaza"l we automatically avoid subjectivity and, therefore, charges
of unfairness and cruelty in our judgments.

Sometimes the tragic case does happen and we accept there are no halachic
avenues to spare someone an agonizing reality (obvious, very painful examples 
include the aguna, the otherwise qualified Kohen who suffers physical
disfigurement, the mamzer). In my opinion, this would be such a case. 

Here's a follow-up question: It seems pretty clear to me that a case like the
one addressed by the Tzitz Eliezer is extremely rare (my wild guess: < 1%
population). Do we adjust halacha for the the statistically improbable case or
do we allow those extremely few, affected people to cope with their
circumstances as best they can without legal redress?

I can probably guess what the gut response of most people to that question would
be, but is there some historical, halachic standard that applies?


From: Martin Stern <md.stern@...>
Date: Tue, Apr 12,2016 at 04:01 AM
Subject: Halachically married without civil marriage

Carl A. Singer wrote (MJ 62#77):

> It seems that the most recent discussions have strayed far afield from the
> original.
> In the common cases within contemporary communities those "halachically
> married without civil marriage" are by no means "single mothers."   They are
> for all intents and purposes within their community married and living within
> what we might consider a normal family / marital relationship.
> The key point is that by eschewing a civil marriage they have self-positioned
> themselves as single and unwed in the eyes of civil government and thus they
> are reaping myriad financial benefits under a wide umbrella of social programs
> meant to subsidize unwed mothers.

As a long-time member of Mail-Jewish, Carl should not be surprised at this
'straying far afield from the original' - we have a long tradition of new
threads developing in this manner. This does not imply the original thread has
been discontinued and we certainly welcome further contributions to it.

Martin Stern

From: Susan Buxfield <susan.buxfeld@...>
Date: Tue, Apr 12,2016 at 09:01 AM
Subject: Halachically married without civil marriage

In response to Carl A. Singer (MJ 62#77):

The question which Carl appears to be (or should be) asking is whether halacha
permits abuse of the system if it does not involve anything that is formally
illegal, i.e. take advantage of unintended loopholes.

The issue is reminiscent of the famous pay-phone call-collect debate where a
caller would request the telephone company to place the call to the number
requested with the hope that the receiving party would agree to pay for the call
at an inflated price.

The scam being that the caller would supply the company with a fake name so that
the receiving party would understand to reject the request and then call back
the initiating party at the normal price.

Legal abuse occurs when the system involved does not have the ability, without
undue expense, to determine abuse and. therefore, has not legislated a stance
against it.

The halachic question arises when Dina D'Malchuto Dina does NOT apply, can a
person take financial advantage of a fault in the system, or should ethical
considerations apply.



From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Sat, Apr 9,2016 at 10:01 PM
Subject: Marital Rape

Concerning marital rape, which is prohibited in most states, Irwin Weiss
(MJ 62#75) states:

> I'd be awfully disappointed if Jewish law was that such behavior were
> acceptable.

I actually already responded to this twice in MJ 62#74. Here are the two

> 1. Under Jewish Law (Ex. 21:10), there is a **biblical** obligation to provide
> happy marital intimacy, one which the women enjoys, to one's wife.
> 2) Jewish law does hold a man responsible for all bodily damage done to his
> wife.

I thought this sufficiently clear.

So first, let me clearly list the sources defending what I said, that a husband
is liable for all damages to his wife.

The first source to consider is Rambam, Torts (Chovel and Mazik) 4:15-17:

> A man who damages his wife during intimacy must pay damages

This is codified in the Code of Jewish Law (Shulcan Aruch) Even Haezer 83:9.
However, there are dissenting views. The dissent is not whether damages should
be paid for; rather the dissent is how many of the five categories of damage the
husband must pay. In Jewish Tort law each tort has 5 categories of damage -
bodily damage, pain, humiliation, medical and disability (loss of work)

To understand the final position of Jewish law we visit the Aruch Hashulchan on
Choshen Mishpat 424:11 who appears to decide like the Rambam that all five
categories of damage must be paid. To understand this recall that a wife can
choose to either earn her own living (her own bank account), or to give her
earnings to her husband and let her husband support her and provide for medical,
food etc. (The choice is the wife's not the husband's).

If the woman retains her own earnings, then all authorities agree that the
husband must pay all five categories of damage for a tort during intimacy. If
however the wife cedes her earnings to her husband and lets her husband support
her then if he damages her he first pays her and then proceeds to benefit from
the payment since he has rights on whatever she earns. The Geonim saw the
fallacy in this: He damages her, pays her, and then benefits from the interest
on the payments since she ceded earnings to him. The Geonim, explains the Aruch
Hashulchan, therefore fined him. However, some feel that the Geonim only fined
him in certain categories of damage (for reasons that need not concern us).  The
Rambam, explains the Aruch Hashulchan, simply fined the husband in all five
categories - he damaged her and therefore he forfeits *all* rights of benefit
from the payment he gives his wife. As the Rambam says: 

>(Independent of their economic arrangement) She is free to do with the payment
> as she pleases (in other words her husband has no rights on them).

To further clarify what is going on let us list examples and analyze them
from the perspective of Jewish law.

Example 1: The husband rapes his wife. Here I assume that, like all rape, there
is bodily damage, the need for medical treatment, and needless to say pain and
humiliation. The husband has violated the prohibition of causing torts and must
pay all five categories of damages to his wife. I think Irwin would say that
most states judge this way.

Example 2: I read that an agunah once related that her husband would begin acts
of intimacy by spilling ice cold water on her naked body. Here there is no body
damage nor a need for medical. But there is pain and humiliation. The husband
has violated the law prohibiting torts and must pay 2 categories of damage to
his wife. Techincally we need not call this "rape". I would be curious to
Irwin's reaction: Would this be tried in most states similarly. Or perhaps,
could a judge say that the courts will not rule on inappropriate teasing during
a consented act.

Example 3: A man is retired and plays poker with the guys every night. Under
Jewish Law, a retired man must visit his wife each night. This is implicit in
the contractual obligations implied by the marriage ceremony. This obligation
cannot be annuled by an agreed with stipulation. It follows that the wife can
force the man to stay home and have intimacy with her even though he doesn't
want to. Since the man is having sex he doesn't want to, this is an example of
non-violent rape from the wife on the man. In this case, Jewish Law would not
regard the wife as doing anything wrong and there are certainly no damages. The
husband has the right to divorce his wife (if playing poker means that much to
him) but must pay her full alimony.  Notice in this case that the marriage
contract created an implied consent which erases the rape.

Example 4: A husband and wife have consensual relations but the husband has
imappropriate and/or excessive kissing. In other words, the woman protests
certain acts and he continues. Again, I am not certain if this should be called
rape or sexual assault. If this were done to a non-wife the man would be liable
for humiliation (and if you like, pain). However, the act of marriage gives the
husband and wife certain rights on each other; in this case the act of marriage
gives the husband the right to all kissing and frequency. So the marriage erases
the status of rape (or assault). The woman has the right to sue for divorce. The
marriage contract cannot be re-stipulated. I am curious what Irwin thinks states
would do in this case.

Example 5: A husband comes home from a business trip and has relations with his
wife while asleep. If this were done to a non-wife the woman could collect
humiliation damages. Similarly, if a person grabs another person on the street
and prevents movement, he must pay humiliation (There are no other damages). My
understanding, is that the husband is not liable for any damages. The marriage
contract allows unlimited frequency and there has been no body damamge. I would
be curious how Irwin would regard the perception of state law on this. (Note: I
don't recommend such behavior if the husband wants his marriage to continue; but
the issue before us is damages)

It is not enough to give examples. We have to lay down a model of intimacy. It
certainly is not "explicit, sustained, enthusiastic". I would question whether
"explicit, sustained, enthusiastic" is valid psychologically. The two genders
achieve pleasure in different ways. How then can we assert that all acts done
during intimacy have a shared "explicit, sustained, enthusiastic" nature. I
would instead lay down a model of 'mutual teamwork and respect' by which I mean
that each party gives the other what they need to achieve pleasure and each
party puts up with the needs of the other party to attain their goals. This is a
different model but I believe psychologically valid.

In summary, the act of marriage is an act of acquisition. This acquisition gives
implied consent to certain acts (such as unlimited kissing and frequency). It
does not give rights of bodily damage but does exempt the man from humiliation
payments for inappropriate kissing (according to his wife) or excessive kissing.
As I noted in example 3, the wife also has coercive rights on her husband.

Finally, I would return to the issue of state law. I am very interested what
Irwin, who has made valuable contributions to this thread, would say on these
five examples. The Newspaper article on the Iowa case I cited lists certain
states where marital rape is not a crime. I believe Irwin answered this by
pointing out that *most* states have laws against marital rape. But more
importantly I would ask Irwin: There has been a clear statement that states have
laws. That was not my point. My point was about practice! In practice, are there
convictions. Don't standard defense arguments of "the other party really wanted
it or didn't mind" prevent that. I would be curious not about state law but
about practice.

I hope this posting clarifies the various issues which have been raised.

Russell Jay Hendel; PhD ASA 


From: Leah S. R. Gordon <leah@...>
Date: Tue, Apr 12,2016 at 12:01 PM
Subject: Single Parenthood

Dr. Steven Oppenheimer wrote (MJ 62#77):

> In response to the issue of single motherhood (MJ 62#76):
> The focus was that women have a biological clock and if they can't find the
> right man, why should they be denied the joy of having a child.  It is 
> certainly understandable that women (and men) would like to have children.
> Is there any discussion about what is best for the child?  Do folks honestly
> feel that the the nuclear family (father, mother, child) is not preferred?  Is
> there something missing when a single person, male or female, says I *want* a
> child irrespective of what is best for the child?
> It is hard to honestly argue that having a father and a mother (in a stable
> relationship) is not the better situation for a child.
> See Dennis Prager's argument here:
> http://www.dennisprager.com/how-the-nuclear-family-became-controversial/
> and here:
> http://www.jewishjournal.com/dennis_prager/article/male_female_marriage_remain
> s_the_ideal

With all due respect to Dr. Oppenheimer, I would like to make a few points:

1. "The focus" was in no way limited to women's desire to have children. The
focus was on whether it is legitimate to "stigmatize" any kind of family that
doesn't follow one's own world-view.  I brought examples of other kinds of
families, of which a single mother who wants a child, would be one such example.

2. The discussion about "what is best for the child" - indeed - was my
introduction of scientifically validated studies about outcomes (educational,
social, medical).  When we examine outcomes and social science, it is not a
sufficient or reasonable question to pose, "Do folks honestly feel..." - that is
why we have data to answer these questions. Lots of "folks" have "honest
feelings" that are opposed to reality (if you doubt that, look up public opinion
on climate change, the existence of Santa Claus, geography, definitions of
seasons, definitions of eclipses, existence of dinosaurs, existence of
evolution, and many other subjects.)

3. Most importantly, I read Dennis Prager's column and found it to be utterly
without content.  His thesis statement seems to be, "my common sense tells me
that what I'm used to, and what I have the privilege of participating in, is the
very best kind of life ever to have - and don't ask me for data because what I
think is good should be enough to convince you".  Prager has other columns of
this sort about, for instance, vegetarianism - in which he essentially says,
"Meat tastes good so who cares about data or animal welfare or spiritual
considerations etc."  This is not the level of discourse that I am comfortable
participating in, because it does not meet the level of evidence-supported
discussion that we tend to require on M.J.  In my reading of Prager, as well as
in my one conversation with him, I have become convinced that what he does well
is reassure conservative thinkers that they don't have to rethink anything or
listen to anyone with a point on the other side.  This is not a
characteristic that I respect in a person.

4. I believe it does take a certain amount of bravery and humility to truly 
comprehend the following: a way of life that might not be *my* way of life can
be valid.  My "common sense" is to a large extent a product of living in a
complicated soup of cultural expectations.  My privilege might blind me to why I
value things/relationships that I have and devalue things/relationships that
other people have.

--Leah S. R. Gordon


From: David Tzohar <davidtzohar@...>
Date: Tue, Apr 12,2016 at 04:01 AM
Subject: Under age Marriage

This week those of us participating in the Daf Yomi program learned a whole
sugia about the proper age to get married (Kiddushin 29b-30a) 

Rav Chisda was very proud of the fact that he was married at age 14. He said
that he was bothered by his yetzer hara (sexual desires) but since he got
married he was better able to concentrate on his studies.

On the other hand there were Amoraim who said that early marriage, and the
responsibility of parnassa and taking care of a family, would aderaba [on the
contrary - MOD] make it more difficult to learn. 

The conclusion was that one should marry no later than 20, after which one is
mevatel mitzvat pru urvu, except in special cases where it could be put off till
22 or even 24. There seems to be a difference in the position between chachmim
from Bavel (Shemuel) as opposed to those who lived in Eretz Yisrael (R.
Yochanan). The Bavli'im would marry early and then go to Eretz Yisrael to
continue their studies. Since they were not actually living at home they were
not bothered by the responsibility of taking care of their family (which they
left to their wives). Those from Eretz Yisrael lived with their wives so their
sexual needs were fulfilled but they had the job of taking care of their
families. The Bavli'im explained that since they had "pat besalo [know that they
will at some point return to their wives] they were not bothered by their yetzer

I tend to agree with R' Chisda. From my own personal experience I can say that
the years between 14 and 18 are years of raging hormones and hirhurei aveirah
[sexual fantasies] which definitely made it difficult to concentrate on
learning. I myself was married before age 20.

Several years ago there was a spate of underage marriages (15-16) in the Jewish
community of Kiryat Arba-Hebron. These were not arranged shidduchim but real
love matches. As far as I know they seem to have worked out pretty well.

David Tzohar
Armon Hanetziv,Jerusalem



End of Volume 62 Issue 78